2. Miss O complains that staff working for the Trust left her father, Mr T’s, bed rails down on 9 December 2020. She says this was despite his care plan clearly stating that they should be left up to prevent falls.
3. She says that because of this, her father fell from his bed and this caused his death, which occurred later that same day.
4. Miss O would like the Trust to accept responsibility for its actions and pay financial compensation for its negligence.
5. We have included a brief background of the main points in this complaint, but this is not all the information about what happened. We must ensure that the evidence we request and the information we share is equal to the case and the decisions we reach. Therefore, we have kept the background to this complaint brief, but we would like to reassure Miss O that we have fully reviewed the evidence she sent to us.
6. Mr T was an inpatient at a hospital run by the Trust. On 9 December 2020, Mr T was in bed and his bed rails were left down. As a result, Miss O says that Mr T fell from his bed.
7. The Trust has acknowledged this happened, in its letter to Miss O’s family dated 2 September 2021. The Trust added that when a nurse found Mr T on the floor, he was alert and able to have a conversation. The nurse’s account was that Mr T told them he had not hit his head, but he was complaining of pain in his shoulder.
8. Following the fall, the Trust says that its staff followed its falls protocol and that the nursing staff called for a doctor to assess Mr T. The Trust’s account is that there was no indication of any injury at that time. It also explained to the family that the fall was not listed on his death certificate as either a cause, or significant contributing factor, of his death.
9. Miss O and her family believe the Trust was negligent and the fall ultimately led to Mr T’s death.
11. The law says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We have discussed this with Miss O to understand her family’s circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look into.
12. Miss O clearly references ‘negligence’ in her complaint to us and, after speaking to her on the telephone, she clearly feels that the care her father received was negligent. As Mr T was an inpatient at the Trust, there was a duty of care owed to him by the medical professionals treating him. As the family clearly believes this duty was breached, and then this caused his death, Miss O and her family have two legal options available to them: · a claim for medical negligence · claiming under the Fatal Accidents Act 1976.
13. The law is clear. We cannot consider complaints which have legal remedies available, unless it is unreasonable to expect the person to pursue these. We then considered whether it is, or was, reasonable to expect Miss O and her family to pursue a legal route.
14. Miss O is seeking financial compensation. Claiming for medical negligence and/or claiming under the Fatal Accidents Act can achieve the compensation she is looking for. She is also seeking an acknowledgement of what went wrong, which the court could not achieve for her directly but could achieve indirectly. The primary outcome Miss O wants is compensation, and this is best suited to being achieved via the courts.
15. We spoke to Miss O over the telephone to explain what the law says and to ask whether there were any reasons why it was not reasonable to expect her to follow up on a legal option. She discussed this with her family and told us that they do not believe it is reasonable for the following reasons: · the distress of the incident makes it difficult to pursue legal action · Miss O has been diagnosed with a mental health condition that has caused her to stop working, and she says this is a financial and health barrier to pursuing legal action · her mother is too distressed and does not have the funds to pursue legal action · the costs of legal action would cause Miss O distress.
16. We have a lot of compassion for Miss O and her family with regards to the distress they have experienced, and we acknowledge that pursuing court action would likely be distressing. That said, this would be distressing for most people for a negligence claim that resulted in death. We note that many families experiencing similar distress successfully pursue this option. While we empathise with Miss O, we are not persuaded this is a barrier that prevents her from pursuing a legal claim.
17. We also acknowledge and empathise with Miss O’s mental health diagnosis, and that this diagnosis can make a person experience emotions more intensely. We recognise that this could be a barrier to pursuing a legal claim, but we also note that Miss O has a mental health advocacy service available in her area. This service could support her in pursuing a claim and this could remove this barrier. We would expect Miss O to have approached services for mental health support in pursuing court action before considering this barrier further.
18. In addition to the distress and her mental health, Miss O also says that she and her family cannot get affordable representation and a claim would be too costly to pursue. We recognise that his can be a legitimate barrier to pursuing court action and we must take this seriously. We do not want members of the public to be disadvantaged because of cost. That said, Miss O has not yet explored how affordable this would be for her. While legal action can be costly, there are a number of solicitors in her area who offer no-win-no-fee options for representation. We would expect Miss O to contact these firms and establish whether she can access this affordable representation before deciding cost is a barrier.
19. Based on the information we have seen, Miss O and her family have two legitimate legal options available to them. We consider that, at this stage, it is reasonable to expect them to pursue these. That means we can take no further action on this complaint at this time.
1. We have carefully considered Miss O’s complaint about Mid and South Essex NHS Foundation Trust (the Trust) and we consider that she could take legal action regarding the matter she has brought to us. We were very sorry to learn about what happened and how distressing the loss of Miss O’s father has been for her and her family.